Young v. Schofield

Sherwood, J. 1. As already seen, the pleadings in this case do not set forth with sufficient fullness and accuracy what should have been stated. — 660 — Take, for instance, the. first portion of the petition. The plaintiff would seem by that attempt to assume the role of “innocent purchaser,” but his averments are by no means sufficient to that end. In order for a party to occupy such an attitude as above said, he must -be -one who is “a bona fide purchaser for a valuable consideration without notice.” 1 Story, Eq. Jur. [13 Ed.], pp. 63, 387, 417, 436, 438; 2 Ib. 825. This quotation from the authorities readily shows that these essential elements compose the tout ensemble of such a person as plaintiff evidently desired to describe himself as being: First, he must be a purchaser in “good faith;” second, “without notice;” and third, for a “valuable consideration.”. Lacking any of these ingredients, a person is not a bona fide purchaser within the meaning of the books. Insurance Co. v. Smith, 117 Mo. loc. cit. 293. This claim of “innocent purchaser” is in an answer an affirmative defense, and in a petition occupies a similar affirmative attitude, the party pleading it must “come into a court of equity with absolutely clean hands.” 2 Pomeroy, Eq. Jur. [2 Ed.], sec. 762. And not only must the affirmative claim or affirmative plea contain the elements aforesaid, but those elements must be appropriately amplified; thus: “In Frost v. Beekman, 1 Johns. Ch. 288, Chancellor Kent says: ‘If a purchaser wishes to rest his claim on the fact of being an innocent bona fide purchaser, he must deny notice, though it be not charged; he must deny fully and in the most precise terms every circumstance from which notice could be inferred.’ See, also, Halsa v. Halsa, 8 Mo. 303, and Sillyman v. King, 36 Iowa, 208, and cases cited.” Holdsworth v. Shannon, 113 Mo. 508. Guided by these authorities, it is at once obvious that the passage quoted from plaintiff’s petition lacks — 661 — much of meeting the requirements of those authorities, sáying nothing of the omission to state when the purchase was made. The reply is also bad in its beginning, as heretofore set forth. Our statute, section 2049, Revised Statutes, 1889, requires that an answer shall contain: “First, a general or specific denial of each material allegation of the petition controverted by the defendant, or any knowledge or information thereof sufficient to form a belief; second, a statement of any new matter, etc. ” Similar language is employed in section 2052, Ib., relative to what a reply shall contain; .so that both these pleadings must be governed in their framing by cognate rules. It is scarcely necessary to say that this portion of the reply is insufficient as a denial, because it is impossible to tell what allegation in the answer is ‘ ‘inconsistent with the allegations in the petition contained,” and it is equally difficult to tell what plaintiff means when he says he “especially denies all new matter in said answer of defendant.” Under such denials as these, both court and adversary are left in the dark as to what plaintiff intends to deny by those portions of his reply. The provisions of our code of civil procedure in regard to the liberal construction of pleadings, section 2074, Revised Statutes, 1889, and as to what an answer shall contain, section 2049, Ib., are substantially identical with sections 519 and 500, Wait’s New York Code Civil Procedure, 1877. And it has been ruled in that state that section 519 in relation to liberal construction of pleadings with the view .to substantial justice between the parties, extends only to “matters of form” and does not “apply to the fundamental requirements” of a good pleading, Rugeb, C. J., remarking: “A construction of doubtful or uncertain allegations in a pleading, — 662 — which enables a party by thus pleading to throw upon his adversary the hazard of correctly interpreting their meaning, is no more allowable now than formerly; and when a pleading is susceptible of two meanings, that shall be taken which is most unfavorable to the pleader. (Bates v. Rosekrans, 23 How. Pr. 98.) It is in the nature of things that a party who is required to frame his issues for the information of his adversary and the court, must be responsible for any failure to express his meaning clearly and unmistakably. While it is competent for a party to move to make the pleadings of his adversary more definite and certain, yet, inasmuch as it is the primary duty of the party pleading to present a clear and unequivocal statement of his allegations, the onus of having them made so can not be cast upon his adversary by his own fault in failing to perform his duty.” Clark v. Dillon, 97 N. Y. 370. Such pleadings have been denounced as 11 vicious” in Long v. Long, 79 Mo. 644, Philips, C., observing: “The object of pleading, especially under our code, is to form specific and definite issues of fact. When the answer, as in this case, tenders many issues of fact in different counts, affecting the integrity of plaintiff’s title relied on as the basis of his recovery, he ought to answer all the allegations, either by denying or admitting them.” To the like effect see Snyder v. Free, 114 Mo. loc. cit. 367. 2. When this case came on for hearing, the following agreement was filed: “It is agreed that at the date of the purchase by the plaintiff of the land in question from his brother that he had no personal notice of the issue or levy of the alias execution upon the land in question. It is further agreed that after that and prior to the sale of the land in question under said execution and levy that the plaintiff and his brother John C. Young, both had knowledge of the — 663 — levy of said execution upon said lands; but that no notice in writing was caused to be served by the plaintiff in said execution upon the defendant, John C. Young, in said execution, at least twenty days before the sale or at any other time.” As to the first clause of the stipulation just quoted, it is almost needless to observe that even if the petition on the point of plaintiff’s being an “innocent purchaser” had been sufficient, such evidence as the first clause of the stipulation contains would have been wholly inadequate to support it, and this was all in the nature of evidence offered on that point. Inasmuch as the averment or defense of being an “innocent purchaser” is an affirmative allegation or plea, so must, the evidence offered in its support be of the like nature; as the allegation must be affirmatively pleaded, so also1 must it affirmatively be proven; the onus lies on the pleader. Holdsworth v. Shannon, 113 Mo. loc. cit. 525; Jewett v. Palmer, 7 Johns. Ch. 65; Conn. Mut. Ins. Co. v. Smith, 117 Mo. loc. cit. 294. So that neither upon the pleadings nor upon the evidence in this case can plaintiff be regarded as a purchaser without notice within the meaning of the authorities. 3. But in the circumstances disclosed by this record, it is wholly immaterial whether the plaintiff was an innocent purchaser or not in the accustomed sense of that term, and for these reasons: The levy of the execution on the land in Marion county was properly made July 18, 1892, and on the same day, notice of such levy filed with the recorder of deeds, etc. The effect of this levy, etc., was to create a lien on the litigated land, and give notice thereof to every one. R. S. 1889, sec. 4922. And as plaintiff bought the land and received a deed therefor on the thirtieth of July, 1892, he took subject to the subsequent enforce — 664 — ment of the levy and the lien to which the land had already been subjected; and when that lien was enforced and consummated by the sale under execution, that sale had relation to the date of the levy, and swept out of existence all subsequently created titles and transfers. Meier v. Meier, 105 Mo. loc. cit. 428; Huff v. Morton, 94 Mo. loc. cit. 410; 2 Freeman, Executions [2 Ed.], sec. 333, and cas. cit.; 1 Ibid., secs. 195, 58. So that for the additional reasons in this paragraph mentioned, defendant must be regarded as the holder of the better as well as the legal title to the land in controversy. This remark, however, must be taken as subject to the questions whether the judgment had been fully satisfied prior to the levy of the execution aforesaid on the land, and as to the effect to be given to the failure to notify John C. Young of the issuance of the execution as required by section 4943, Revised Statutes, 1889. Of these topics in their inverse order. 4. And first as to the failure of Schofield to notify John C. Young, the defendant therein, of the issuance of the execution to Marion county, a county in which he did not reside. Was this failure fatal to the validity of the sale? The provisions of section 4943 have been discussed on several occasions in this state, the first instance being when a plaintiff, a resident of St. Louis county, sought to set aside a sheriff’s deed made to Murphy, the land being situate in Franklin county, the sale being made under a special fieri facias, the result of a judgment of foreclosure of a mortgage, the defendant having been personally served with process. The fact that such was the manner of service is apparent from the provisions of the statute, the same at that time as now, to the effect that if a mortgagor has been duly summoned, or appears to the action, the judgment if for plaintiff shall be for the recovery of the debt, etc., — 665 — and that if - the mortgaged property be not sufficient, etc., then the residue to be levied of other goods, etc., lands, etc. (R. S. 1889, sec. 7087), and from the remarks of Judge Leonakd, who, after stating that the sale had been made under a special fieri facias, and that the object of the statute requiring notice to a defendant in an execution, was to prevent creditors from sending their executions to distant counties, on errands of speculation and then selling and buying the land of a debtor without competition and for a nominal sum, held that though the language of the statute was general in its words, “all execution sales,” yet that considering the reason of its enactment as aforesaid, it did not apply to a case of the sort under consideration, because, as he remarked, “the defendant in this execution knew, for such was the general law, that this land must be sold under this judgment before any other property could be touched by it, and that the sale could take place only in the coun'ty of Franklin. The material fact, then, required by the legislature to be communicated to the debtor, in what county the creditor elected to subject his debtor’s land to execution, was already known to him, and therefore there is no reason for our considering such a case as falling within the requirements of the statute.” Hobein v. Murphy, 20 Mo. loc. cit. 449. The next case arising was that of Ray v. Stobbs, 28 Mo. 35. There personal service was had on the defendant and judgment rendered before a justice of the peace of DeKalb county, where both parties resided, and a transcript filed in the DeKalb circuit court, and from thence an execution issued to Andrew county, and the defendant not being notified, it was held that on timely application by the defendant, the sale which occurred should have been set aside. Next followed the case of Harris v. Chouteau, 37 — 666 — Mo. 165, where the parties plaintiff and defendant all resided in Jackson county. Plaintiff sued defendants, had personal service on defendants; and they appeared and defended the action which resulted in judgment against the defendants. After process was served on defendants, one of them removed to Ste. Genevieve county. Subsequent to this, execution was issued in the county of the judgment’s rendition, and levied upon land of the removed defendant, and it was afterward sold, etc., but no notification was had upon her, and it was held she was entitled to none, Wag-nek, J., observing: “If the judgment creditor is so disposed he may issue his execution to a remote county, have the land of his debtor levied on and sold, and possibly buy it in at a great sacrifice, if the owner is not notified so that he can be there and protect his rights.' It was to prevent this unconscionable advantage from being taken that the law was enacted. But where a party is brought into court by personal service, and judgment-taken against him, and execution issued to the sheriff of the same county in which the judgment is had, he is certainly fully notified of all the proceedings.” So, too, in Buchanan v. Atchison, 39 Mo. 503, the defendant was sued, personal service had, and judgment obtained against him, and afterward he removed to another county, and his land in the county in which judgment was rendered was sold, and it was held for reasons similar to those already given, he was entitled to no notice. Likewise, in Harper v. Hopper, 42 Mo. 124, a similar ruling as heretofore mentioned was made where a defendant was resident of a county other than that in which the action was brought, but he appeared to the action and made defense, and this was held tantamount to personal service, Wagnek, J., after citing the two cases already noted in 37 and 39 Mo., saying: “There — 667 — is nothing in the present case to distinguish it from, those referred to. Although the defendant did not reside in Polk county when the judgment'was taken, yet he appeared and defended the suit. The execution was issued to the sheriff of that county, and the -land levied on and sold was situated in the same county. He then had sufficient notice that an execution would issue to that county, and he can not bring himself within the mischief intended to be remedied by the law in reference to executions.” These cases established beyond question the rule that the strict letter of the statute, section 4943, is so far expanded by construction as to embrace all cases where a defendant being personally served with process in a county where he resides and has land, or personally served, etc., in a county where he has land, or, being sued in a county other than that of his residence, he appears to and defends the action, having land in such county, that, in all such instances that section as to notice does not apply. This is the utmost limit to which the letter of the law guided by its reason has been extended by this court in the cases already cited. This resume of former cases leads to that of Lohmann v. Stocke, 94 Mo. 672. There, Stocke lived in St. Louis; he had land in Morgan county. Judgment was rendered against Stocke in the city of his residence, and also in Morgan county for costs, presumably upon proper service, and execution awarded to that county and the land of Stocke situated in that county was sold, without any notice being given him. But this court held that inasmuch as he had land in the county where the judgment was rendered, therefore, he was not entitled to notice. Of course this ruling is not in accord with our prior decisions and is an entire misapprehension of them, because it utterly — 668 — ignores their true intent, spirit, and meaning, whereby personal service or a defense made to the action in the county where the defendant has lands, is the legal equivalent of, and substitute for, th&“notice in writing,” which, in other circumstances, 'the statute imperatively requires. That case was correctly decided on its facts, as shown by the files therein, for there a judgment for costs was rendered against Stooke while he was in Morgan county, and of course this fact brought that case within the principle heretofore announced in our early cases. The only trouble about the Lohmann-Stoclte case is that the language of the opinion does not put it on the correct ground, to wit, that ol personal service in the county where the land afterward sold lay. 5. But granting that the failure to notify John C. Young of the issuance of the execution to Marion county was a noncompliance with the statute, as it undoubtedly was, was it such a failure as amounted to anything more than an irregularity 1 We are of opinion that it was not, and in this we do but follow frequent rulings as to the usual notice not being given of ordinary sheriff’s sales. Draper v. Bryson, 17 Mo. 71; Curd v. Lackland, 49 Mo. 451. See, also, Harness v. Cravens, 126 Mo. 260. 6. Taking it, then, as true, that the failure to notify John C. Young is a mere irregularity, such irregularity can only be taken advantage of by the defendant in the execution himself; not by another. This is the rule announced in respect of notices of ordinary sales under executions, and the like reasoning fits the case at bar. 2 Freeman, Executions [2 Ed.], sec. 286, and cas. cit. It is unnecessary to say what would be the proper ruling on this point did plaintiff — 669 — occupy the position of creditor to defendant, John C. Young. 7. This brings us down to the question whether the judgment was satisfied prior to the execution sale of the land which constitutes the core of this litigation. This subject readily divides into two branches, the first of which is in regard to the effect of the sale, or rather attempted execution sale of the personal property in Lewis county. The rule seems well settled that although a levy on sufficient personal property is a satisfaction sub modo of the debt which the writ represents, yet that such prima facie or apparent satisfaction may be rebutted in a variety of ways, so as to show that there was no real satisfaction, as ex. gr.: that the property has been restored to the possession of the owner, as in the case at bar, the levy being abandoned, or that the levy was, through no fault of the plaintiff, nonproductive, or the property not subject to levy nor execution. Herman, Executions, pp. 255, 256, and cas. cit.; 2 Freeman, Executions [2 Ed.], secs. 269, 271, 445, and citations. Now, at common law the equitable interest of a debtor in chattels was not the subject of sale under execution. Our statute, section 4915, while it subjects equitable interests in lands to sale, lets the common law as to equitable interests in chattels or personal property remain as it was. In consequence of the existence of this principle, no title or interest passed to the plaintiff in the execution, which was levied on the personal property in Lewis county, because the defendant was the mortgagor of that property in possession, and it was soon afterward sold to satisfy the mortgage debt. King v. Bailey, 8 Mo. 332; Yeldell v. Stemmons, 15 Mo. 443; Sexton v. Monks, 16 Mo. 156; Boyce’s — 670 — Adm’r v. Smith’s Adm’r, 16 Mo. 317; Foster v. Potter, 37 Mo. loc. cit. 529. In such, circumstances as these, the attempted levy of the writ on an interest in property nonseizable and nonsalable under execution amounted to nothing and plaintiff had the right, on discovering this, to abandon the supposed levy; treat it as a nullity and let the property return to the possession of the mortgagor. Freeman, Executions, sec. 271. 8. This being the case, the execution can not be regarded as satisfied, as outside of the mortgaged property only a small sum was realized. And inasmuch as this is the result of that sale, it becomes wholly unnecessary to discuss the effect of the payment of the $50 in alleged satisfaction of the balance due on the judgment, as a sufficient sum existed to support the sale. But were it necessary to do so, it is sufficient to say that it is the established law of this state that a part payment of a debt is ordinarily no satisfaction of the residue. Price v. Cannon, 3 Mo. 453; Riley v. Kershaw, 52 Mo. 224; Willis v. Gammill, 67 Mo. 730; Tucker v. Bartle, 85 Mo. 114. There is nothing in the circumstances of this case to take it out of the operation of the familiar rule. 9. Nothing has been said about the declarations of law asked by defendant, because this being a case in equity, such declarations are entirely out of place. For the reasons heretofore given we reverse the decree entered for plaintiff, and a decree will be entered in this court in behalf of defendant Schofield, canceling the deed made by John C. Young to plaintiff. Bubgess, J., concurs. Uantt, P. J., dissents.